Long Delays And ICE Investigative Unit For Students On OPT

International students on Optional Practical Training (OPT) are worried about processing delays that threaten their ability to remain in the United States. The Trump administration’s response? Establish a new unit designed to investigate students and employers. Those who follow international education say the administration’s goal is to diminish public and Congressional support for OPT, which would be consistent with the Trump administration’s approach to international students over the past four years.

Optional Practical Training allows international students to work for 12 months and 24 additional months in science, technology, engineering and math (STEM) fields. The ability to gain practical work experience following a course of studies attracts many international students to America and is considered a vital part of their education. Competitors for talent and students, such as Canada and Australia, already make it much easier than the United States for international students to work after graduation.

A recent survey found that during Fall 2020, “new enrollment of international students physically in the United States declined by 72{c25493dcd731343503a084f08c3848bd69f9f2f05db01633325a3fd40d9cc7a1},” more than the 43{c25493dcd731343503a084f08c3848bd69f9f2f05db01633325a3fd40d9cc7a1} drop in foreign enrollment overall because students started online overseas. The U.S. government’s policy on international education has become even more critical.

International students sending money and applications to the Texas Service Center have faced delays of many weeks that threaten their ability to remain in the United States and work on OPT. As one education specialist explains, “After one year of OPT when filing for the additional two-year period for STEM, it is possible to continue to work with a receipt notice of a timely filed extension.” The problem is the Texas Service Center’s lockbox has turned into a black hole. A student who does not receive a receipt notice eventually will be unable to continue working. It can also affect first-time applicants for OPT, depending on the length of the delay. It also affects the ability to land an OPT position.

On a video produced by international students affected by the Texas lockbox delays, one student after another describes waits of 8, 10 or 11 weeks without receiving a receipt. “I lost my job offer,” said one. The delays may cost a student her legal status, said another. “We don’t know how many more days we need to wait to even get a receipt, let alone getting our cases approved,” said a student. “VOA interviewed more than 10 students in the same situation and had access to chat rooms where hundreds more described reports of receipt notice delays at a Dallas USCIS [U.S. Citizenship and Immigration Services] lockbox facility,” reported Voice of America.

Did the Trump administration respond to these desperate pleas from students to ensure it did not further diminish America’s reputation as a place to study? No, the pleas have been largely ignored. Instead, Trump officials promised new investigations, potential crackdowns and publishing information designed to weaken support for allowing international students to work in America after graduation.

“The Student and Exchange Visitor Program (SEVP) has determined that it must take bold action to ensure that the Optional Practical Training (OPT) programs operate in a manner that does not harm U.S. workers or foreign student employees, consistent with regulatory and statutory law,” announced Immigration and Customs Enforcement (ICE), which oversees OPT, in a statement on January 13, 2021. “SEVP is announcing the development of a new unit—the OPT Employment Compliance Unit—that will be dedicated full-time to compliance matters involving wage, hours, and compensation within OPT, the OPT extension, and Curricular Practical Training (CPT). This unit will publish a public-facing report at least annually on its findings, which will include detailed information on duties, hours, and compensation of OPT workers in a standard formatting that will allow for comparisons against DOL data. The first report will be published on ICE.gov by July 31, 2021.”

“This is potentially a big deal,” said attorney Dan Berger in an interview. “The devil is in the details, but for decades OPT has been considered more as training connected to the degree than as work. This move goes down the path of regulating STEM OPT more like H-1B visas. STEM OPT is a prime motivator for international students to study here in STEM fields.”

William Stock of Klasko Immigration Law Partners said this unit’s work should not be taken lightly by companies or students. “Participation in OPT requires employers and students to make statements and commitments to a government agency on a form seeking a benefit under the immigration laws,” he said. “As such, students and employers could both be punished for false statements with civil fines under Section 274C of the Immigration and Nationality Act or with criminal prosecution. In addition, false statements could serve as the predicate for removal proceedings against the student as a status violator.”

Labor economist Mark Regets, a senior fellow at the National Foundation for American Policy, doubts ICE officials can make reasonable comparisons between U.S. workers, who typically take jobs that are open-ended, and international students on Optional Practical Training, who by regulation cannot work for more than 12 months unless they receive a STEM extension that will allow only an additional 24 months.

Research shows little evidence that international students on OPT are “taking jobs” from U.S. workers. A University of Maryland-Business Roundtable study concluded restricting OPT would cost jobs. “A total of 443,000 jobs would be lost in the economy by 2028, resulting in 255,000 fewer positions for native-born workers,” concluded the study. “The modeled results echo myriad prior studies illustrating that employment in the United States is not a zero-sum game.”

Madeline Zavodny, an economics professor at the University of North Florida, examined nearly a decade of OPT data. Zavodny concluded, “The results indicate that the OPT program does not reduce job opportunities for American workers in STEM fields.” The study for the National Foundation for American Policy found, “There is no evidence that foreign students participating in the OPT program reduce job opportunities for U.S. workers. Instead, the evidence suggests that U.S. employers are more likely to turn to foreign student workers when U.S. workers are scarcer. . . . The OPT program is an important way for the U.S. to attract and retain foreign talent.”

If the Biden administration feels it must keep the new unit, analysts and attorneys say it should focus its work on exposing bad actors and educating participants about the rules. It should ensure any reports released are done responsibly and not follow the path of the annual “overstay” reports by DHS, which have produced questionable findings and dubious policy recommendations.

“The Biden administration can utilize this unit and perhaps change it from an ‘enforcement unit’ to a ‘fact-seeking commission’ that can provide solutions on improving the technology available to enhance SEVIS to ensure the information provided by the student, employer and DSO’s [Designated School Official] match to ensure compliance,” said Kelli Duehning, a partner at Berry Appleman & Leiden and a former attorney at USCIS who worked closely with law enforcement and investigators. “Thus, the reports that are released are not just calling out which students or employers are not complying but a more general approach to determine the volume of violations and why those violations are occurring? Is it fraud or a lack of understanding of the program? Perhaps this unit could partner with employers and provide training on the OPT program to ensure employers understand its educational component and purpose. Including higher educational institutions on a commission to ensure the training plans include the necessary elements to ensure a positive OPT experience for the student.”

Dan Berger agrees. “If this has to happen, I would say providing more guidance on best practices is always helpful,” he said. “If there is a team overseeing students on STEM OPT, they could look for fraud, but also clarify safe harbors and best practices. For example, explain whether employers should keep a compliance file and what should be in it and provide outreach to startup companies and businesses that are part of a university incubator or accelerator. The oversight team could provide information on how best to comply, while also promoting STEM OPT as a benefit.”

The Biden administration should understand the latest action from the Trump administration on international students. A former DHS official offered an explanation for why a few days before Donald Trump leaves office Trump political appointees established a new ICE investigative unit to go after students and employers: “These folks are like those guys that know they’ve already lost their security deposit, so they’re just trying to see how much damage they can do before they leave town.”

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